CHAPTER TWENTY-FOURTH. OF TITLE TO THINGS PERSONAL BY OCCUPANCY. We have confidered the nature of things perfonal, and now proceed to treat of the various titles by which they are holden. The original title to property has already been remarked, to have been occupancy: and fince the establishment of civil fociety, all the other modes have been introduced for the purpose of rendering the poffeffion of property fafe, and to prevent the difputes tha muft conftantly arife in a recurrence to the original, natural right, But as there are fome inftances, in which it is difficult to defignate the particular owner, it is neceflary to refort to the natural title of occupancy. Yet in all fuch cafes the law has pointed out the circunftances under which the right may be exercifed, fo as to prevent any controverfy or doubt. A I. y It is confidered as a principle of the law of nations, that any body has a right to feize and appropriate to his own ufe, the goods of an alien enemy: for when nations are at war, it is confidered as confitent with justice and good policy, to annoy each other by every poffible mode. Nor can it be ftrange, that fuch a principle has been adopted, when we confider, that in the early ages of mankind, and among all barbarous nations the great objectof war has been plunder. This has been exemplified in a Ariking manner, by the conduct of the European nations in the dark ages, when whole nations engaged in the bufinefs of piracy, like the modern flates of Barbary. This unquestionably is the origin of the prefent practice of privateering, which has however been fyftematized by regulations of law, tho not defenfible upon the principles of moral right. Private perfons are not fuppofed to poffefs this power, but it relides in the fupreme government of the nation, who may grant commiffions to private perfons, to make captures on the high feas, of the property of the enemy; and then fuch property fo taken, fhall veft in the captors. If an alien enemy bring goods into the country, after declaration of war, they are liable to be feized, unless he comes under the protection of a palport, or fafe conduct. But if an alien enemy, chance to be y 2 Black. Com. 401. be'in the country, at the time of the declaration of war, his pro But as the laws refpecting derived from the law of na perty is not expofed to be taken. privateers and letters of marque, are ture and nations, it will not be expected that I enter into any further investigation of this fubject, in this place. 2. The title to waifs, ftrays, loft goods, wrecks, and treasure trove, is founded in occupancy; the firft, and laft are regulated by the common law, and the other by ftatute. 1. Waifs are goods ftolen and waived, or thrown away by the thief in his flight, for fear of being apprehended. If the owner can be known, the goods helong to him, but if no owner ean be found, then to the first occupant. 2. Treafure trove, is where any money, or coin, filver, plate, or bullion are found hidden in the earth, or fome private place, the owner thereof being unknown. Such treafure belongs to the first fortunate finder: but if the owner be known, or can afterwards be difcovered, it belongs to him. In England it is true, that waifs and treafure trove belong to the king; but in this itate as we have no ftatute regulation, I prefume, that the common law right of the first occupant, muft be established. 3. z In respect of strays and loft goods, it is enacted by ftatute, if any perfon take up any ftray beaft, or find any loft goods, worth two fhillings, the owner being unknown, he fhall carry a true defcription, with the natural and artificial marks, to the register of the town, where found, within fourteen days, on penalty of forfeiting the value of the goods, or ftray beaft, one half to the complainer and the other half to the town treafury. The register is to record the defcription and the name of the finder, and holder of the goods, or flray beaft. If the owner appear in fix months, and evidence his title to the property, it fhall be restored on paying neceflary charges, to be determined by the next aflitant or jullice of the peace. If no owner appear within fix months, the regiver appoints two freeholders, who under oath, eftimate the value of fuch goods or beat in money. If the owner appear in fix months afterwards, make good his claim, and pay the neceffy expenfes ≈ Statutes, 238. expenfes, he fhall have reftitution, or the value according to the appraisement at the election of the finder. If no owner appear in twelve months and a day, the value according to the appraisement, after deducting just fees, to the keeper, finder, and register, fhall belong to the town treasury, where fuch goods or beast were found and the felectmen are impowered to recover and receive the fame. The goods or beats are to be at the rifque of the owner the first fix months, the keeper being faithful in his care of them; and no beast may be taken up as a ftray, unless found in a fuffering condition. 4. a The ftatute concerning wrecks of sea, enacts, that if any fhips or other vellels, fhall fuffer fhipwreck upon our coafts, no violence or wrong fhall be offered to perfons or goods: but their perfons fhall be harboured and relieved, and their goods preferved in fafety, till proper authority be informed, and give directions. That whenever any fhipwrecked property fhall be difcovered on any of our coafts, it fhall be the duty of the felectmen of the nearest town, and lawful for any perfon to take the most effectual measures to fave and fecure the fame, and if need be, fuch perfon may apply to an affiftant or juftice of the peace, who is authorised to issue his proper warrant to fome proper officer, to imprefs and call forth neceffary affiftance. Such perfons fecuring fuch property, fhall immediately give notice to the judge of the county court in that county, who shall direct the sheriff to seize the fame, and keep it till difpofed of by order of faid court. That if any owner entitled by the laws of the land, or the laws of nations, fhall appear within a year and a day after fuch feizure, and claim the fame, it fhall be reflored upon his paying fuch reafonable cofts and falvage to the perfon to whom it is due, as faid court fhall order and allow. But if no owner appear within the time, make claim, and pay cofts and falvage, fuch property fhall be fold by order of faid court, and the avails thereof, be lodged in the ftate treafury, after deducting reasonable cofts and falvage for the perfons to whom due. If the property be of a perishable nature fuch court may at difcretion direct it to be fold, within the limited time, and retain the avails for the fame purpofes: and if no owner appear in a month, to pay falvage Statutes, 264. falvage and cost, the court may at any time afterwards fell fufficient to pay the fame. 3. The benefit of the elements of light, air, and water, may be taken and holden by occupancy. If a perfon has an ancient window that overlooks his neighbour's ground, his neighbour has no right to erect another building fo contiguous to it, as to obftruct the light but if a perfon erect his houfe clofe by the wall of another, fo as to be incommoded by it, or clofe by his houfe fo that the light be obftructed, he cannot compel him to pull down the wall, or the houfe; for the owner of the wall is the firft occupant, and he having claimed his right, cannot be deprived of it. If a man fhould erect a tan-yard, or exercife any noisome trade, fo near the house, or gardens of another, as to corrupt the air, and raise noxious ftenches and unwholesome steams, an action will lie against him in favour of the perfon injured; but when a man has once erected fuch buildings, and is in the exercise of fuch trades, and another person fixes his habitation fo near, as to be offended thereby, he cannot maintain an action, because the other perfon had the prior right by occupancy. If a ftream of water flow thro a perfon's land, he has a right to take every natural, and artificial advantage of it, by erecting water-works, or flowing his land, provided he does not wholly divert the water-courfe, and deprive the adjoining proprietor, on the fream below, of water for neceflary and ordinary purpofes, as drink for his cattle. 4. The property of animals of a wild nature, while they are fo, is acquired folely by occupancy. Any perion has a right to take, and to kill all wild animals; when he has taken them, he acquires a qualified property, and when he has killed them, he acquires an abfolute property, and is by law protected in the pofleffion of them. In England, and the European kingdoms, many wild animals, or as they are denominated, game, are by fpecial prerogative vefted in the king and nobility, as hunting is efteemed too princely and noble a diversion for the people at large. The game-laws, which are calculated to preferve the game, bear exceeding hard upon the liberty of the fubject. But in this ftate, the fpirit of the people has Vol. I. never been broken down by fuch tyranny and oppreffion. Huns ing, fowling, and fishing, are confidered as proper diverfions for every clafs of people, and may be faid to be free. These sports are laid under no restraints by law, and the people may enjoy them as they pleafe, without reftraint or danger of incurring any penalty. To hunt on another's territory, is a common cuftom. No action will lie in favour of the owner of the land, for any injury for the act of hunting, becaufe the animals which are killed, being wild, cannot be his property. If any action can be maintained, it must be for the injury done by entering on the territory of another without his confent, and the damage to his poffeffions. For this unquestionably an action would lie, as in legal confideration it is a trefpaís. ¿ 5. Acceffion is a right of property grounded on occupancy, and herein the common law is copied from the civil law. Thus if any given corporeal substance, receive any acceffion, by natural or artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the converfion of wood, or metals into veffels and utenfils, the original owner is entitled to it under fuch state of improvement, but if the thing itself be changed, by fuch operation into a different fpecies, as by making bread out of another's wheat, there the property is changed, it belongs to the new operator, who is to make fatisfaction to the former owner, for the things he has converted. It has been held that if one takes away another's wife or fon, and clothes them, and afterwards the husband, or father retakes them, the property of the garments fhall ceafe to be in him, who provided them, becaufe they are annexed to the perfon of the woman, or child. 6 In cafe of the confufion of goods, where those of two perfons are fo intermixed, that they cannot be diftinguifhed, and feparated, there if the intermixture be by confent, the proprietors have an intereft in common, in proportion to their fhares; but where one wilfully intermixes his property with another's, without his confent, he fhall lofe it, and the whole fhall veft in the other, without being liable to make any compenfation. So in the cafe of acceffion, if a perfon fhould by his labour, or any other way increale, For the law refpe&ting Fishing, fee book III. chap. 22. d Ibid. 405. |